135 A. 717 | Pa. | 1926
Argued December 2, 1926. This is a proceeding under the Declaratory Judgments Act of June 18, 1923, P. L. 840, to determine the rights of the respective parties to a lease.
Appellee demised to appellant certain premises in Philadelphia for the term of ten years from the first day of July, 1911. In the lease there are two provisions for the continuance of the tenancy. The language of the fifth paragraph is: "If the lessee shall hold over, after the expiration of the term hereby created, with the consent of the lessor, it shall be deemed a renewal of this lease, and of all the conditions and covenants therein contained for the term of five years and so on from year to year until the lease is terminated by either party giving to the other not less than 90 days' notice for removal prior to the end of any term." The other provision, contained in a rider, reads: "It is further agreed between the parties hereto that the lessee shall have the option of remaining in possession of said premises for a further period of five years after the expiration of this lease, under the same terms and conditions thereof, at the same rental, viz: nine hundred dollars per annum to be paid in monthly installments of seventy-five dollars in advance."
Without anything being done by either party the lessee continued in possession of the property at the end of the ten-year period and in due time prior to the expiration of the succeeding five years, the lessor gave to the lessee a ninety days' notice for possession on June 30, 1926. The lessee refused to surrender possession at the time called for in the notice, claiming that under the second quoted paragraph of the lease he had the option of a further term of five years. The court below determined otherwise and we acquiesce in its decision. *200
The argument of the appellant may be epitomized as follows: When he remained in possession after the expiration of the ten-year term, it was by virtue of the fifth clause, the consent of the lessor being presumed from his silence. When the notice to quit was given, so the argument continues, the lessee's rights terminated under the fifth clause and then, for the first time, his rights under the rider provision came into existence, so that he then had the option to remain for a further period of five years. In other words, appellant argues in effect that when the lease gave him the option of remaining in possession of the premises for a further period of five years "after the expiration of this lease" it meant five years after the expiration of "this lease and any renewals thereof." The rider or option provision could not become effective, it is said, until there was a termination of the lease or of a renewal thereof as provided in the fifth clause, that is by giving notice.
The contention against this position is that the fifth clause had no application until "the expiration of the term hereby created" and that the term "hereby created" was the original ten-year period plus the optional period of five years or a total of fifteen years. This is the view taken by the court below, the opinion citing Harding v. Seeley,
It seems to us, however, that the sole question to be decided here is as to the meaning of the rider provision and particularly when rights under it could be exercised. As heretofore pointed out, the option was given of remaining in possession for a further period of five years "after the expiration of this lease." It is clear to us that these words mean the expiration of the ten-year period. In Pettit v. Tourison,
We conclude, therefore, that the option clause operated from July 1, 1921, and that the remaining in possession after that time was under that clause. There is no merit in appellant's argument that the lessor's express dissent was required in order to prevent the "holdover [fifth] clause from going into effect" at the end of the ten-year period. As was tersely said by Judge TAULANE, speaking for the court below: "The purpose of the rider was to give the lessee an additional term of five years at his option, and not at the lessor's grace as provided in the hold-over clause." Also without foundation is the statement that the option could be exercised only by giving notice. It has often been said that the holding over by a tenant who has an option for an additional term is notice to his landlord of his election to exercise his privilege: Harding v. Seeley,
The court below entered a declaratory judgment in which it was decreed that the lessee's term as tenant of the property expired on June 30, 1926, and that it was his duty to vacate and deliver possession of the premises to the plaintiff. Thereafter he issued a writ of habere facias possessionem in pursuance of a rule granted on the defendant to show cause why execution should not be issued. It is the contention of appellant that the Declaratory Judgments Act provides only for *202
declaratory relief and not for relief by way of execution and that if the act does provide for execution, it is invalid, because in violation of article III, section 3, of the Constitution, as the title to the act gives no notice of the provision therein relative to execution. This position is not well taken. The act is entitled "An Act concerning declaratory judgments and decrees and to make uniform the law relating thereto." One of the incidents of a judgment is execution. Things that are merely incidental to the real subject of an act need not be recited in its title: Reeves v. Phila. Suburban Water Co.,
The act (section 8) provides for supplemental relief: "Supplemental relief. Further relief, based on a declaratory judgment or decree, may be granted whenever necessary or proper. The application therefor shall be by a petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient the court shall, on reasonable notice, require any adverse party, whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith." We passed on the constitutionality of the act in Kariher's Petition,
All of the assignments of error are overruled and the judgment and order of the court below are affirmed.
